Attorney says gay Dallas man will take his battle for a divorce to the Texas Supreme Court

‘J.B.’

A court’s decision last year to deny a divorce to a gay Dallas couple is being appealed to the Texas Supreme Court.

Attorney James “Jody” Scheske confirmed Wednesday that his client, J.B., plans to appeal the August decision by the 5th Circuit Court of Appeals, which ruled that gay couples can’t divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his husband, H.B., were married in 2006 in Massachusetts before moving to Dallas. After they filed for a divorce in Dallas County, District Judge Tena Callahan ruled in October 2009 that she had jurisdiction to hear the case, calling Texas’ bans on same-sex marriage unconstitutional.

Texas Attorney General Greg Abbott promptly intervened and appealed to the 5th District court, which overturned Callahan’s decision.

“We respectfullly disagree fundamentally with the Court of Appeals ruling that denies equal acess to divorce,” said Scheske, of Akin Gump Straus Hauer & Feld in Austin. “Thus we’ve decided to request that the Texas Supreme Court review the case.”

Scheske said his petition for review has not yet been filed and he’s requesting an extension of the deadline until February. He said once the petition is filed, the Supreme Court will decide whether to hear the case. Scheske acknowledged that the high court is considered very conservative, but he remains optimistic.

“In my business, you always believe that justice can prevail, and the justices on our Supreme Court, just like every other judge and lawyer, are bound to apply the law equally to everybody,” Scheske said. “I know people are cynical about that, but that’s actually the way our system works.”

Scheske recently scored a victory in another gay divorce case in Austin, where an appeals court ruled that Abbott could not intervene after a district judge granted a divorce to a lesbian couple. However, Scheske said the Austin ruling was based on procedural grounds and has no impact on the Dallas case.

—  John Wright

Motion for rehearing filed in Texas gay divorce case

Attorneys for plaintiff ask that full 5th District appeals court rehear case after 3-judge panel overturned trial court ruling granting divorce

John Wright  |  Online Editor wright@dallasvoice.com

Attorneys for a gay Dallas man who’s seeking a divorce from his husband filed a motion this week requesting a re-hearing of the case by the full 5th District Court of Appeals.

An all-Republican, three-judge panel of the Dallas appeals court ruled Aug. 31 that the man, identified in court documents as J.B., cannot obtain a divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his attorneys had the option of dropping the matter, appealing the decision to the Texas Supreme Court, or requesting a re-hearing by the 13-justice 5th District Court en banc. They filed their motion seeking the rehearing on Wednesday, Sept. 15.

“We believe adequate grounds exist for the entire court of appeals to reconsider the panel’s opinion, and we hope the entire Dallas court of appeals will do that,” said James J. “Jody” Scheske of Akin Gump Strauss Hauer & Feld, the Austin firm representing J.B.

Scheske said for the request to be granted, a majority of the 13 justices would have to agree to rehear the case.

Depending on the outcome, Scheske said he’s unsure whether they’ll appeal the decision to the Texas Supreme Court.

“We’re taking it one step at a time,” Scheske said. “We’re hopeful the entire court of appeals will issue an opinion we can live with, in which case further appeal won’t be necessary.”

J.B. and his partner, H.B., were married in Massachusetts in 2006. After they moved to Dallas, J.B. filed for a divorce in 2008.

In October 2009, Democratic District Judge Tena Callahan ruled she had jurisdiction to hear J.B.’s divorce petition, saying Texas’ bans on same-sex marriage are unconstitutional.
Republican Attorney General Greg Abbott appealed Callahan’s decision, and the appeals court panel ruled in Abbott’s favor.

For a full copy of the motion seeking the rehearing, go to http://tinyurl.com/3x6u4mt.

This article appeared in the Dallas Voice print edition September 17, 2010.

—  Michael Stephens

BREAKING: Re-hearing sought in gay divorce

Attorneys for a gay Dallas man who’s seeking a divorce from his husband have filed a motion requesting a re-hearing of the case by the full 5th District Court of Appeals.

An all-Republican, three-judge panel of the Dallas appeals court ruled in August that the man, identified in court documents as J.B., cannot obtain a divorce in Texas because the state doesn’t recognize same-sex marriage.

J.B. and his attorneys had the option of dropping the matter, appealing the decision to the Texas Supreme Court, or requesting a re-hearing by the 13-justice 5th District Court en banc.

“We believe adequate grounds exist for the entire Court of Appeals to reconsider the panel’s opinion, and we hope the entire Dallas court of appeals will do that,” said attorney James J. “Jody” Scheske of Akin Gump Strauss Hauer & Feld, the Austin firm representing J.B.

Scheske said for the request to be granted, a majority of the 13 justices would have to agree to rehear the case. There is no timeframe for the court to rule on the request, he said. Depending on the outcome, Scheske said he’s unsure whether his client will appeal the decision to the Texas Supreme Court.

“We’re taking it one step at a time,” Scheske said. “We’re hopeful the entire court of appeals will issue an opinion we can live with, in which case further appeal won’t be necessary.”

J.B. and his partner, H.B., were married in Massachusetts in 2006. After they moved to Dallas, J.B. filed for a divorce in 2008.

In October of last year, Democratic District Judge Tena Callahan ruled she had jurisdiction to hear J.B.’s divorce petition, saying Texas’ bans on same-sex marriage are unconstitutional.

Republican Attorney General Greg Abbott appealed Callahan’s decision, and the appeals court ruled on Aug. 31 in Abbott’s favor.

To read the full text of the motion seeking a re-hearing, go here.

—  John Wright

LGBT advocates blast divorce case ruling

Lambda Legal attorney calls 5th District’s decision ‘worst of opinions,’ warns further appeals could set damaging precedent for marriage

Read the full opinion written by Justice Kerry P. FitzGerald

John Wright  |  Online Editor
wright@dallasvoice.com

Ken Upton
Ken Upton

Texas is justified in prohibiting same-sex marriage — and divorce — because gay couples can’t procreate and because children are better off raised by heterosexual parents, according to a ruling handed down by a state appeals court in Dallas this week.

But these prohibitions don’t unfairly target same-sex couples because Texas also prohibits bigamous and polygamous heterosexual marriage, and because gay couples do enjoy some state protections, such as the ability to seek protective orders from domestic violence, the court said.

Allowing same-sex couples to divorce in Texas would redefine the fundamental institution of marriage, according to the court’s opinion. And if same-sex couples want more legal rights, they should petition the Texas Legislature, not the judiciary.

Dallas’ 5th District Court of Appeals ruled Tuesday, Aug. 31 that a gay couple legally married in Massachusetts cannot obtain a divorce in Texas. The ruling overturned a district judge’s decision last year that declared the state’s marriage bans unconstitutional. Democratic District Judge Tena Callahan’s October 2009 decision allowing the gay couple to seek a divorce was appealed by Republican Attorney General Greg Abbott.

LGBT advocates slammed Tuesday’s long-awaited, 38-page ruling in the case, which came from an all-Republican, three-judge panel of the appeals court.

“It was the worst of opinions,” said Ken Upton, a Dallas-based senior staff attorney at Lambda Legal, the national LGBT civil rights group. “It reinforced all of the old arguments we thought we were moving away from.

“These are stupid arguments with no real basis,” Upton added. “They’re made up just to oppress us. It [the opinion] is an example for people who thought we’d made progress everywhere — welcome to Texas.”

Upton, who isn’t involved in the case, said the ruling will have a limited legal impact because, for now at least, it’s binding only in Texas’ 5th District. But he called the ruling psychologically damaging to the LGBT community and said it steals momentum from recent court victories, including a federal judge’s decision last month declaring California’s Proposition 8 unconstitutional.

Equality Texas, the statewide gay-rights group, issued a statement calling the appeals court’s ruling in the gay divorce case “homophobic, outdated and uninformed.”

“The Fifth District Court of appeals has taken the most extreme, the most conservative view possible on each issue before it,” Equality Texas said. “It’s not as if they wanted to just overturn the trial court’s decision, they wanted to smash it into the ground and discourage anyone from ever filing a pro-LGBT suit ever again.

“The ruling harkens back to a view of the world from generations past — a world where LGBT people were content to live in closets, and were afraid to demand to be treated with dignity and respect. A dignity and respect that this court goes out of its way to completely deny,” Equality Texas said.

The extreme nature of the panel’s ruling “lowered the bar” for another court to overturn it, according to Equality Texas. But Upton, long a critic of the gay divorce case, said he hopes the decision isn’t appealed, because the Texas Supreme Court could inflict more damage by laying down a broader precedent.

James Scheske, left, and Pete Schulte
ON APPEAL | James Scheske, left, and Pete Schulte, attorneys for the plaintiff in the Texas gay divorce case, respond to questions during a press conference after oral arguments in the same-sex divorce case were heard earlier this year. Scheske said this week that whether they appeal the case to the Texas Supreme Court depends on what is best for their client. (David Taffet/Dallas Voice)

“You have to pick your courts,” Upton said. “You have to pick the place where you think you’re going to have a fair chance of convincing someone. I just don’t think that was the Dallas court of appeals, and I certainly don’t think it’s the Texas Supreme Court.

“I guess we could go file one in Mississippi or Alabama if we wanted some more losses that say bad things about gay parents,” Upton added, “but we don’t want to reinforce that message when the momentum is on the side of equality.”

Attorneys for the Dallas man seeking a divorce from his husband, identified in court documents as J.B., said this week that no final decision had been made about whether to appeal.

“I expect an appeal, but that’s ultimately our client’s decision,” said James Scheske of Akin Gump Strauss Hauer & Feld, the Austin law firm representing J.B.

J.B.’s attorneys have 45 days, or until Oct. 15, to appeal the decision, but Scheske said he expects to know within two or three weeks.

In response to concerns about the potential impact of a negative ruling from the Texas Supreme Court, Scheske said his job is to represent his client.

“I have a client who has a valid marriage that needs to end,” Scheske said.“The people who are at the advocacy groups, they’re all very well-intentioned, but they need to think about what my client’s position is, and what would they propose he do?”

J.B. married his husband, H.B., in Massachusetts in 2006 before moving to Texas and filing for divorce in January 2009. Massachusetts, where same-sex marriage has been legal since 2004, has a residency requirement for divorce.

“My duties go to my client, not to what some advocacy group thinks is the best thing to do for some movement,” Scheske said. “I don’t represent a movement; I represent an individual.”

Peter Schulte, the gay Dallas attorney who serves as co-counsel for J.B., said his client was unavailable for comment this week.

Scheske called the appeals court’s ruling “disappointing.”

“This opinion singles out one group of citizens, same-sex couples, and denies them the same rights that everybody else has,” he said.

Scheske also represents an Austin woman who’s seeking a divorce from her wife. After the Travis County district judge granted a divorce to the lesbian couple earlier this year, Attorney General Abbott appealed.

Jerry Strickland, a spokesman for Abbott, praised the Dallas ruling this week.

“Because the Constitution and laws of the State of Texas define marriage as the union of one man and one woman, the court correctly ruled that Texas courts do not have authority to grant a same-sex divorce,” Strickland said. “Further, the court rejected the parties’ constitutional challenge and instead ruled that Texas’ definition of marriage is entirely consistent with the U.S. Constitution.”

The Attorney General’s Office was assisted in the case by the right-wing, Plano-based Liberty Institute.

“The court’s ruling strikes down an activist judge’s attempt to take the law into her own hands,” Liberty Institute President Kelly Shackelford told The Fort Worth Star-Telegram.

The decision came from Justice David L. Bridges, R-Fate, who was elected to the court in 1996; Fitzgerald, R-Dallas, who was appointed by Gov. George W. Bush in 1999; and Robert M. Fillmore, who was appointed by Gov. Rick Perry in 2009.

This article appeared in the Dallas Voice print edition September 3, 2010.

—  Michael Stephens

Appeals court says no to gay divorce

A state appeals court in Dallas has ruled that two gay men who were married in Massachusetts cannot obtain a divorce in Texas.

The ruling came from the 5th District Court of Appeals on Tuesday in the case, In the Matter of the Marriage of J.B. and H.B.

J.B. and H.B. married in Massachusetts in 2006 and filed for a divorce in Texas in January 2009 after moving here. Massachusetts, which has allowed same-sex marriage since 2004, has a residency requirement for divorce.

In October of last year, District Judge Tena Callahan ruled that J.B. and H.B. could obtain a divorce in Texas, saying that the state’s constitutional amendment banning same-sex marriage is unconstitutional.

Callahan’s decision was immediately appealed by Republican Attorney General Greg Abbott, who argued that same-sex couples cannot divorce in Texas because the state doesn’t recognize same-sex marriage. An all-Republican, three-judge panel of the appeals court heard oral arguments in the case in April.

“We hold that Texas district courts do not have the subject-matter jurisdiction to hear a same-sex divorce case,” the panel said in Tuesday’s ruling. “Texas’s laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.”

Pete Schulte, a gay Dallas attorney who serves as co-counsel for J.B. in the case, issued a statement Tuesday afternoon.

“We respectfully disagree with the justices’ opinion,” Schulte said. “However, we respect the process and are evaluating our options moving forward.”

Jerry Strickland, a spokesman for the AG’s office, said in a statement: “Today’s Court of Appeals decision overruled the District Court’s improper ruling, confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples. Because the Constitution and laws of the State of Texas define marriage as the union of one man and one woman, the Court correctly ruled that Texas courts do not have authority to grant a same-sex divorce. Further, the Court rejected the parties constitutional challenge and instead ruled that Texas’ definition of marriage is entirely consistent with the U.S. Constitution.”

Many expect case the case will be appealed to the Texas Supreme Court.

To view the full ruling, click on this link: Gay.Divorce

—  John Wright

If Prop 8 is really unconstitutional, you should totally be able to get a gay divorce in Texas

Pete Schulte, left, and James J. Scheske are like a gay divorce dream team.

Attorneys for a gay Dallas couple that’s seeking a divorce are citing the recent Prop 8 ruling out of California — in which a federal judge declared the state’s marriage ban unconstitutional — to bolster their case.

James J. Scheske of Akin Gump Straus Hauer & Feld, one of the attorneys representing the gay couple, filed a letter brief Aug. 18 with Dallas’ 5th District Court of Appeals. The brief cites not only the Prop 8 ruling, but also two July rulings from Massachusetts in which a federal court declared the Defense of Marriage Act unconstitutional.

“Since this case was submitted, there have been significant developments in the body of law relating to the constitutional infirmity of efforts to deprive lawfully-married same-sex couples of the same benefits, responsibilities, and protections afforded all other married couples,” Scheske wrote in the brief. “This court should take heed of these decisions, which vindicate the trial court’s holding in this case that laws depriving lawfully-married same-sex couples of the right to obtain a divorce are unconstitutional.”

Scheske represents J.B. and H.B., who married in Massachusetts and are seeking a divorce in Texas.

Democratic State District Judge Tena Callahan ruled last October that J.B. and H.B. can get divorced in Texas. But Republican Attorney General Greg Abbott appealed Callahan’s decision, arguing that Texas cannot grant the divorce because the state doesn’t recognize same-sex marriage.

A three-member panel of the state appeals court heard oral arguments in the case in April. There is no deadline for the justices to rule.

Click on the link to read the full brief: J.B.’s Letter Brief-r

—  John Wright